State ex rel. City of Sikeston v. Pub. Serv. Comm.

Citation82 S.W.2d 105
Decision Date17 April 1935
Docket NumberNo. 33694.,33694.
PartiesSTATE OF MISSOURI at the Relation of the CITY OF SIKESTON, Appellant, v. PUBLIC SERVICE COMMISSION.
CourtUnited States State Supreme Court of Missouri

Appeal from Cole Circuit Court. Hon. N.G. Sevier, Judge.

AFFIRMED.

Roger A. Bailey for City of Sikeston.

(1) Before a certificate of public convenience and necessity shall be issued, a certified copy of the charter of such corporation shall be filed in the office of the commission, together with a verified statement of the president and secretary of the corporation, showing that it has received the required consent of the proper municipal authorities. Sec. 5193, R.S. 1929. (2) Local consent is a condition precedent to the granting of a certificate of public convenience and necessity by the Public Service Commission. Secs. 5174, 5193, 5195, R.S. 1929; State ex rel. v. Mo. Util. Co., 53 S.W. (2d) 394; 51 C.J. 45. (3) The statutes require the consent of the city to be given by the "municipal authorities," and this means the legislative authorities acting by ordinance. Holland Realty & Power Co. v. St. Louis, 221 S.W. 51; Secs. 4962, 7683, R.S. 1929; State ex rel. v. Mo. Util. Co., 53 S.W. (2d) 394. "... Sections 4962 and 7683, supra, plainly make the consent of the municipality, in manner and form there indicated, an essential prerequisite to lawful exercise of the rights therein mentioned, and we find nothing in the Public Service Commission Act or in our decisions construing the same that lends any substantial support to respondent's suggestion that this statutory requirement has been repealed, or that the commission's grant of a certificate of public convenience and necessity is a grant of any privilege, franchise, or right which municipalities, as agents of the State, are empowered to grant or withhold at their pleasure." State ex rel. v. Mo. Util. Co., supra. (4) "If an electric company ... does not for any reason procure when necessary proper municipal consent, the order of the Commission approving an application ... does not and could not cure any such defect." State ex rel. v. Mo. Util. Co., supra; 51 C.J. 41; Wilson v. Pub. Serv. Co., 89 Pa. Sup. Ct. 359. (5) Continued service by a public service corporation after the expiration of its franchise or contract does not operate as a renewal of the contract; and such continued service may be terminated by either party, providing such termination is not inconsistent with the duty both owe to the inhabitants of the city. 44 C.J. 979; Hill v. Elizabeth City, 291 Fed. 194, affirmed 298 Fed. 67; Elizabeth City Water, etc., Co. v. Elizabeth City, 188 N.C. 278, 124 S.E. 611; Selkirk v. Selkirk Elec. Lt. Co., 20 Man. 461, 15 West L.R. 703. (6) A municipality may require a street railway to remove its tracks and other property from its streets, upon failure of the renewal of the franchise, and such removal does not impair any contractual obligation protected by the Federal Constitution or deprive the company of its property without due process of law. Detroit United Ry. Co. v. Detroit, 229 U.S. 39, 57 L. Ed. 1056, 335 Sup. Ct. 697. (7) Matters mentioned or referred to in the application filed herein are not res adjudicata under the decision of the Supreme Court of Missouri in the case of State ex rel. City of Sikeston v. Missouri Util. Co., 53 S.W. (2d) 394. The applicant is not estopped to deny defendant herein the right to have the use of the streets, avenues and alleys of the city of Sikeston for the following reasons: (a) The court will not suffer parties to avail themselves of their own wrong. Agille v. Sarpy, 1 Mo. 720. (b) It is essential that the party claiming the benefit of the estoppel should have proceeded in good faith. Garesche v. Levering Inv. Co., 146 Mo. 436, 48 S.W. 653; Campbell v. Hoff, 129 Mo. 317, 31 S.W. 603; Gray v. Gray, 83 Mo. 106; Oak Grove Home Tel. Co. v. Sound Prairie Tel. Co., 209 S.W. 552; 21 C.J. 1138. (c) No one can claim the benefit of an estoppel arising from an act that is against the law. Blair-Baker Horse Co. v. Ry. Co., 200 S.W. 109. (d) There can be no estoppel in pais unless it appears that the person in whose favor such estoppel is claimed was misled by some act or statement against whom the estoppel is invoked. Northup v. Colter, 131 S.W. 364, 150 Mo. App. 639; Bales v. Perry, 51 Mo. 449; Spurlock v. Sproule, 72 Mo. 503; Smith v. Roach, 59 Mo. App. 115; Losee v. Crawford, 5 S.W. (2d) 105; State ex rel. Moss v. Hamilton, 303 Mo. 302, 260 S.W. 466; Burke v. Adams, 80 Mo. 504; Baker v. McInturff, 49 Mo. App. 505. (e) To constitute an estoppel in pais the act complained of by which the party is sought to be estopped must have been with the intention that the other party should act on it, and the other party must have been induced thereby to act to his prejudice. Burke v. Adams, 80 Mo. 504; Baker v. McInturff, 49 Mo. App. 505.

Frank Lowry for City of Cape Girardeau.

(1) Not only is the power and authority to regulate, but likewise the duty, is fixed upon the municipal corporation to control the use to which the streets, alleys, parkways, avenues, and public places may be subjected within its boundaries by the Constitution and statutes of this State in order that the right of all citizens to the use of the same may never be encroached upon by private interests. Secs. 4962, 6806, 7863, R.S. 1929; Seventh Street Realty & Power Co. v. St. Louis, 282 Mo. 180, 221 S.W. 51; State ex rel. v. Mo. Utilities Co., 53 S.W. (2d) 394; Sec. 20, art. 12, Mo. Const.; McQuillin Municipal Corp., sec. 1415, chap. 30, p. 64; State v. Spokane, 24 Wash. 53, 63 Pac. 1116; Blair v. Chicago, 201 U.S. 400, 50 L. Ed. 801; Petersburg v. Acquaduct Co., 102 Va. 654, 47 S.E. 848; Southern Bell Co. v. Richmond, 103 Fed. 31, 44 C.C.A. 147; Blufield v. Pub. Serv. Comm., 94 W. Va. 334, 118 S.E. 542; McQuillin, Municipal Corp., sec. 1754, chap. 34. The opinion of this court in State ex rel. City of Sikeston, supra, and the opinion of the Public Service Commission in the case at bar clearly deprive the city of Sikeston of the right to control its streets, alleys, avenues, and public places and confers upon the Missouri Utilities Company a vested interest in public property which it can sell and transfer as a valuable asset which is and should be contrary to the public policy in this State. State ex rel. City of Sikeston v. Mo. Utilities Co., 53 S.W. (2d) 394. (2) The city of Sikeston is barred by the opinion of this court in State ex rel. City of Sikeston v. Missouri Utilities Company, from forcing the company to vacate its streets and alleys, and now is barred by the decision of the Public Service Commission from setting aside the certificate of convenience and necessity under which the company operates its properties in Sikeston. Since the theory of utility regulation in Missouri under the Public Service Commission Law is that of controlled monopoly rather than open competition these two decisions give the Missouri Utilities Company in effect a perpetual and an exclusive franchise to operate in Sikeston, Missouri, which is contrary to the law of the State of Missouri. McQuillin, Municipal Corp., sec. 1758, chap. 34, p. 676; Grant Avenue Ry. Co. v. Ry. Co., 148 Mo. 665; Grant Avenue Ry. Co. v. Ry. Co., 132 Mo. 34; St. L. Transfer Co. v. Ry. Co., 111 Mo. 666; Kirkwood v. Highlands Co., 94 Mo. App. 637; Watson v. Ry. Co., 238 Ky. 31, 36 S.W. (2d) 641; State ex rel. Landis v. Rosenthal, 148 So. 769; Memphis v. Bronder, 4 S.W. (2d) 614; McQuillin, Municipal Corp., sec., 1781-83, chap. 34, p. 736; State v. West Mo. Power Co., 281 S.W. 709.

Fordyce, White, Mayne & Williams and N.W. Hartman for Missouri Utilities Company.

(1) The Missouri Public Service Commission has no jurisdiction in this case, and, therefore, no power to revoke the certificate of convenience and necessity issued in case No. 4241. State ex rel. K.C. v. Pub. Serv. Comm., 301 Mo. 197, 257 S.W. 462; Pub. Serv. Comm. v. Ry. Co., 301 Mo. 157, 256 S.W. 226; State v. Pub. Serv. Comm., 316 Mo. 233, 289 S.W. 785; State ex rel. United Rys. v. Pub. Serv. Comm., 270 Mo. 429, 192 S.W. 958; State ex rel. City of Sikeston v. Mo. Util. Co., 53 S.W. (2d) 394; Russell v. Sebastian, 233 U.S. 195; Interstate Trans. Co. v. Pub. Serv. Comm., 251 N.Y. Supp. 350; Frost v. Corporation Comm. of Okla., 278 U.S. 515, 49 Sup. Ct. 235, 73 L. Ed. 483. (2) Hearings and proceedings before the Public Service Commission of Missouri are governed by the rules adopted and prescribed by the commission and substantial compliance with the requirements as outlined in the chapter of the Missouri statutes governing the Public Service Commission of Missouri is sufficient to give effect to the rules, acts, regulations and orders of the commission. Secs. 5144, 5251, R.S. 1929. (3) The city of Sikeston, Missouri, is estopped from taking any further action to question the rights of the Missouri Utilities Company to the certificate of convenience and necessity issued in case No. 4241. State ex rel. City of Sikeston v. Mo. Util. Co., 53 S.W. (2d) 394; City of Mountain View v. Farmers Tel. Exchange, 294 Mo. 623; Simpson v. Stoddard County, 173 Mo. 471; Town of Montevallo v. School District of Montevallo, 268 Mo. 217; St. Joseph v. Railroad Co., 268 Mo. 407; Peterson v. Kansas City, 23 S.W. (2d) 1045; State ex rel. McAllister v. Cupples Station L.H. & P. Co., 283 Mo. 15; 21 C.J. 1189. (4) As long as the Missouri Utilities Company supplies proper service to the public in the city of Sikeston, Missouri, it has a right to continue its operations in said city, and the city, in the operation of its electric plant, acts in its own private capacity. Thompson v. City of Lamar, 17 S.W. (2d) 960; Pierce City v. Farmers Mutual Tel. Co., 1 Mo. P.S.C. 271; In re Adams, 3 Mo. P.S.C. 343; In re Lanagan Tel. Co., 8 Mo. P.S.C. 597; Winter v. Central Main Pr. Co., P.U.R. 1930A, 513; Public Serv. Co. of Colo. v. City of Loveland, P.U.R. 1928C, 47; City of Plymouth v. Wisconsin...

To continue reading

Request your trial
17 cases
  • State ex rel. City of Sikeston v. Public Service Com'n of Missouri
    • United States
    • United States State Supreme Court of Missouri
    • 17 Abril 1935
    ...... v. Mo. Util. Co., supra; 51 C. J. 41; Wilson v. Pub. Serv. Co., 89 Pa. S.Ct. 359. (5) Continued service by a. public service corporation after the ... 848; Southern Bell Co. v. Richmond, 103 F. 31, 44 C. C. A. 147; Blufield v. Pub. Serv. Comm., 94 W.Va. 334, 118 S.E. 542; McQuillin, Municipal Corp., sec. 1754,. chap. 34. The opinion of ......
  • Osborn v. Chandeysson Elec. Co., 42521
    • United States
    • United States State Supreme Court of Missouri
    • 12 Mayo 1952
    ...... States Treasury Department and to the State of Missouri that it had paid plaintiff in the ...Kansas City, 360 Mo. 143, 227 S.W.2d 672, 674[3, 4], on the ...903, 119 S.W.2d 223, 226[6, 8]; State ex rel. City of Sikeston v. Public Service Comm., 336 ......
  • Staff of the Mo. Pub. Serv. Comm'n v. Consol. Pub. Water Supply Dist. C-1 of Jefferson Cnty.
    • United States
    • Court of Appeal of Missouri (US)
    • 17 Noviembre 2015
    ......OPINION FILED: November 17, 2015 John D. Borgmeyer, Jefferson City, MO, for Respondent. Bianca L. Eden, Hillsboro, MO, for Appellant. Before ...State Pub. Serv. Comm'n, 329 Mo. 38, 43 S.W.2d 813 (1931) ; State ex rel. ...426, 62 S.W.2d 742 (1933) ; State ex rel. City of Sikeston v. Pub. Serv. Comm'n, 336 Mo. 985, 82 S.W.2d 105 (1935) ). The Supreme ......
  • Corbett v. Terminal Railroad Assn.
    • United States
    • United States State Supreme Court of Missouri
    • 17 Abril 1935
    ......         Appeal from Circuit Court of City" of St. Louis. — Hon. M.G. Baron, Judge. .  \xC2"...(2d) 37. (2) In permitting Dr. McFadden to state to the jury what plaintiff told him as to her ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT